2019-UNAT-901, Latimer
UNDT exceeded its jurisdiction and erred in law in reviewing the legality of Staff Rule 4.7(a). As Staff Rule 4.7(a) was approved by the General Assembly, the Tribunals had no authority to examine whether or not it is in accord with the 山Charter or any other higher norms. Nonetheless, UNAT held that Staff Rule 4.7(a) only forbids the Secretary-General “to grant an appointment” to a person who has a close family relationship but does not provide a legal basis to revoke a staff member’s appointment. Accordingly, UNAT concluded that the termination of the retired staff member’s 2016 WAE appointment was unlawful and affirmed the rescission of the termination of the 2016 WAE appointment. However, it found the in-lieu compensation awarded to be excessive and reduced it to USD 2,000. As for the decision not to grant the retired staff member a WAE appointment for 2017, UNAT noted that there was merely an informal e-mail exchange between the retired staff member and the Administration regarding a potential 2017 WAE appointment, and no valid contract, or quasi-contract, had been concluded. Therefore, UNDT erred in finding that the retired staff member had a valid WAE contract for 2017. As for future WAE appointments, UNAT held that the retired staff member’s eligibility will depend on whether or not his daughter remains employed by the Organisation. For as long as she is a 山staff member, Staff Rule 4.7(a) will apply and the Administration will be precluded from granting an appointment to him. Consequently, UNAT vacated UNDT’s order with regard to the eligibility for future WAE appointments.
The former staff member, after having retired from the Organisation in 2008, was engaged on a series of temporary appointments on a “when actually employed” (WAE) basis. In October 2012, prior to his daughter’s offer of temporary appointment, the retired staff member resigned from the Organisation as requested by the Administration. The daughter received another temporary appointment with the Organisation from 7 October 2013 to 22 November 2013. The retired staff member was re-engaged on a WAE appointment on 25 November 2013. He received four further WAE appointments, including his most recent appointment, which was from 1 January 2016 to 31 December 2016. In March 2016, his daughter received an FTA, effective June 2016. In October 2016, there was an e-mail exchange between the retired staff member and the Administration regarding a potential 2017 WAE appointment in which the Administration inquired whether he would be available, and he confirmed his availability. On 17 November 2016, the retired staff member was asked to resign pursuant to Staff Rule 4. 7(a) which provides, in relevant part, that “[a]n appointment shall not be granted to a person who is the father, mother, son, daughter, brother or sister of a staff member”. He submitted his resignation on the same day and filed an application with UNDT alleging that the request for resignation constituted a constructive dismissal which is unlawful. The Administration decided not to grant the retired staff member a WAE appointment for 2017. UNDT held that the Administration’s request to the retired staff member to resign was unlawful and amounted to constructive dismissal (i. e. a situation where an employer creates such working conditions or changes the terms of employment that the affected employee has no choice but to resign). It found, inter alia, that i) the decision was based on Staff Rule 4. 7(a) which in itself is discriminatory and inconsistent with higher norms, including Article 101 of the 山Charter; and ii) the non-execution of the retired staff member’s 2017 WAE appointment was unlawful. UNDT ordered rescission of the termination of the retired staff member’s 2016 WAE contract or in-lieu compensation in the amount of USD 10,000. UNDT further ordered that the retired staff member be considered eligible for future WAE contracts within the Secretariat.
i) The Tribunals do not have the authority to examine whether or not the Staff Rules as approved by the General Assembly are in accord with the 山Charter or other higher norms. Neither UNDT nor UNAT is a constitutional court. ii) Staff Rule 4. 7(a) only forbids the Secretary-General “to grant an appointment” to a person who has a close family relationship but does not provide a legal basis to revoke a staff member’s appointment.